Changes to trade union legislation and worker rights

The Trade Union Act 2016 provides much of the current legal framework for industrial action within our workplaces. The Government has noted it believes that this piece of legislation places unnecessary restrictions and red tape on trade union activity and so the ERB seeks to repeal much of its contents with the measures set out below.

View the fact sheet outlining the Government’s intentions.

Employers are required to give employees certain information, as required under the Employment Rights Act 1996, when they start work. One of these pieces of information is whether there is a collective agreement which affects their terms and conditions.

The information required under section 1 of the Employment Rights Act 1996 will be extended so that employers will have to inform employees of their right to join a trade union. Regulations will be published in which it will lay out the details of the form of such information.

We understand that there will be a consultation on this and then we will need regulations to enact this provision.

There is no ‘right of access’ for trade unions into a workplace for recruitment or organisational purposes. It may be agreed as part of a collective agreement between an employer and a recognised union or if it is ordered by the Central Arbitration Committee ahead of a statutory recognition ballot.

The ERB will give trade union the right to request an access agreement with an employer for one or more officials of the union. The purpose of the ‘access’ is to meet, represent, recruit or organise workers and/or to facilitate collective bargaining. The purposes do not include organising industrial action. Any access agreement must then be communicated to the Central Arbitration Committee. Should an access agreement be requested by the union and the employer either failed to respond or an agreement cannot be reached then the CAC may make a determination on the proposed access agreement.

This decision will be made according to the ‘access principles’.  These are trade union officials should only be allowed access for purposes which do not unreasonably interfere with the employer’s business; an employer must take reasonable steps to facilitate access and access should only be denied when it is reasonable in the circumstances.

Draft regulations are required outlining the details of the process and the grounds on which the CAC can refuse requests and what access arrangements they can impose.

The Government launched a consultation on 21 October 2024 which closed 2 December 2024. The consultation concerned enforcement measures should there be a breach of an access agreement.  Under the proposal in the consultation, a party would be able to make a complaint to the CAC which would then issue an order outlining what steps should be taken to rectify the breach and then a financial penalty if that order is not followed.

To start the process for statutory recognition, a trade union must demonstrate that at least 10% of the proposed bargaining unit are union members. The CAC must then be satisfied that the majority of the bargaining unit will be in favour or recognition. In addition, where the CAC has ordered a statutory recognition ballot, then statutory recognition must be supported by a majority of workers voting and by at least 40% of the workers were in the bargaining unit.

The Bill will amend TULRCA so that the following changes are made to those processes. First, the 10% test will be removed; regulations will be introduced setting a new figure which will be between 2 and 10%. This lowers the threshold of support for statutory recognition.  Second, the requirement that the CAC is satisfied that there is a majority support within the bargaining unit will be removed. The new percentage threshold will be sufficient.  Finally, in the event of a statutory recognition ballot, the 40% threshold will be removed, only a majority vote will be required.

Regulations will be required to reduce the percentage test and we have no commencement date for other amendments.

A consultation was issued on 21 October 2024 (closed on 2^nd December 2024) – the issues addressed in the consultation were as follows.

• Strengthening existing restrictions on unfair practices during recognition process
• Extend period during which restrictions on unfair practices apply
• Prohibiting employers from recruiting new workers into bargaining unit to dilute union membership ahead of ballot
• Reforms to make it easier for unions to bring unfair practices complaints to the CAC

Public sector employers can only deduct trade union subscriptions directly from a union member’s pay on behalf of that union if the workers had the option to pay their union subscriptions by other means.

This requirement to provide other means of payment will be removed and so there will be no requirement to provide alternative methods of paying subscriptions.

This will take effect two months after the ERB has received Royal Assent.

Both a trade union official and a trade union learning representative of a recognised union is permitted to take paid time off during their working hours for the purpose of carrying out trade union duties.

This right to paid time off will continue but a new right will be introduced by the ERB whereby an employer, who permits such time off, must provide the employee with ‘accommodation and other facilities’ when it is requested be that for the trade union official or learning representative. The request must be reasonable in the circumstances with regards to a new Code of Practice which will be produced by ACAS.

In addition, the right whereby an employee can complain if they are denied the time off for trade union activities will be extended to cover this new right to accommodation and facilities.  We currently have ACAS guidance on accommodation and facilities. They are, where resources permit, rooms for meetings, confidential space where employees can meet for discussions and access to a phone and other forms of communication e.g. email etc. Where an employee complains that they have not been permitted time off for trade union duties or to carry out their role as a learning representative, the employer will need to demonstrate that the time off which was proposed was not a reasonable amount of time.

This section is not one that will be in force two months after Royal Assent so we await information on precise timings. It will, we presume be reliant on the ACAS code of practice being published.

Whilst unions may have equality representatives, they have no rights to time off nor to have facilities provided in which to carry out their duties.

An employer will be required to permit an equality representative of a recognised trade union time off for carrying out their duties.  The purpose for the time off will include arranging learning or training, carrying out activities for the purpose of promoting the value of equality and providing information and support.

However, the time will only be permitted if the trade union has notified the employer of the employee’s role as an equality representative and the employee has undergone sufficient training to enable them to carry out their role. Sufficient training will be detailed in a Code or Practice issued by ACAS or the Secretary of State. In addition, the employer must provide accommodation and other facilities to the equality representative.

 This section is again subject to the new Code of Practice and no date has been given as yet.

Under trade union legislation, the Government can introduce regulations whereby ‘relevant public sector employers’ with at least one relevant trade union official must publish certain information relating to how much time those officials take off work for their trade union activities. In addition, three years after such regulations are in force, the Government could further introduce regulations which would limit that time off.

These powers will be repealed so the Government will no longer have the power to introduce regulations whereby they could regulate and reduce the amount of time a trade union official takes off work for their activities.

This change will come into force two months after ERB has received Royal Assent.

The Blacklisting Regulations make it unlawful for employers and employment agencies and others to compile, or supply or use a blacklist – a list of persons who have been members of trade unions or taken part in trade union activities – for the purpose of discriminating against them, for example in recruitment decisions.

The ERB allows the Government to introduce regulations whereby lists which may have not been prepared for the purpose of discrimination but are subsequently used for discrimination are prohibited and deemed a blacklist. The example the guidance notes uses is where a list has been complied by AI so there is no intention to discriminate when the list was compiled, but then the list is subsequently sold or used with a view to discriminate.  At that point the list becomes discriminatory.

This will come into force two months after ERB receives Royal Assent although we have still to see any draft regulations to accompany the amendment.

There is a requirement that at least 50% of trade union members entitled to vote must do so for an industrial action ballot to be lawful. In addition, in important public services (as defined in the Trade Union Act 2016) trade unions must obtain the support of at least 40% of all union members entitled to vote.

These turnout thresholds will be removed and so an industrial action ballot will be valid provided a simple majority votes in favour.

This will come into force two months after the ERB receives Royal Assent.

There is a requirement that at least 50% of trade union members entitled to vote must do so for an industrial action ballot to be lawful. In addition, in important public services (as defined in the Trade Union Act 2016) trade unions must obtain the support of at least 40% of all union members entitled to vote.

These turnout thresholds will be removed and so an industrial action ballot will be valid provided a simple majority votes in favour.

This will come into force two months after the ERB receives Royal Assent.

Sections 5 and 6 of the Trade Union Act 2016 sets out the information that must be included on a ballot paper and requires unions to specify how many members were entitled to vote and whether minimum thresholds have been met.

This clause will amend TULRCA so that sections 5 and 6 are repealed. This will mean that a trade union will be required to ask its members which type of industrial action they want to take part in and then the type of action the majority of members vote for will be the protected action.

This will come into force two months after the ERB receives Royal Assent.

Section 4 of the Trade Union Act 2016 required the Secretary of State to commission an independent review of electronic balloting for all industrial action. This review was published and recommended that electronic balloting be tested. A response was never published and so no action was taken.

This will repeal section 4 of the Trade Union Act 2016 although the Government has noted in its Factsheet that the Government is committed to introducing ‘modern and secure electronic balloting’ and promises to launch a working group ‘with full rollout implemented following Royal Assent of the Employment Rights Bill’.

This section will come into force two months after the ERB receives Royal Assent.

Section 8 of the Trade Union Act 2016 requires that the notice a trade union must give an employer of industrial action (post ballot) is 14 days.

This notice provision will be reduced to 7 days.

This will come into force two months after the ERB receives Royal Assent.

There is a gap in the law as demonstrated by the Supreme Court’s decision in Secretary of State for Business and Trade v Mercer. The court demonstrated that there is no protection against sanctions (short of dismissal) taken against an employee who engages in lawful strike action.

This section will give an employee this protection against any detriment they may suffer at the hands of their employer where the specific purpose of that treatment was to deter the employee from engaging in industrial action or to penalise them for continuing to do so. The Government has promised regulations which will outline what constitutes a ‘detriment’.

We have no specific date for this change to come into force and await draft regulations on the definition of a detriment.

Employees who are taking part in lawful industrial action are protected from dismissal for a protected period. This period is currently 12 weeks.

This 12-week limit will be removed and so the employee will be protected for the length of the strike action.

We have no specific time frame for this change.

The unpopular Strikes (Minimum Service Levels) Act 2023 gives the Government the power to set minimum service levels during strikes in essential services and certain sectors.

This Act will be repealed as soon as the ERB is passed.